Will India ever be free of personal laws?

Although it is not the best way to do so, let me begin by quoting from a PTI report, published in newspapers with a Lucknow dateline. “The All India Muslim Personal Law Board (AIMPLB) on Thursday said there was no scope of change in the ‘triple talaq’ system and rejected the suggestion by some community outfits for building a consensus on making a three-month period mandatory before finalisation of divorce.” The report was based on what AIMPLB spokesman Maulana Abdul Raheem Qureshi had to say about the All India Sunni Ulema Council’s letter that “if there was any scope in Islamic law then talaq said by a person thrice in one go should be considered as said only once.”

File picture of a girl standing with a poster denouncing talaq (divorce) on the occasion of the International Women’s Day. Pic/AFP

This forms the immediate backdrop of a point I have often made earlier. Every time secular India has demanded that the system of personal laws based on religious injunctions should be done away with, that Article 44 of the Constitution of India which enjoins upon the Government to adopt a Uniform Civil Code should be taken for what it was meant to be, a cornerstone of state policy in a modern nation state, a countervailing cry has gone up, alleging that it is an assault on the identity of minority communities, indeed, an assault on the hocus-pocus ‘Idea of India’.

That, of course, is a misnomer; what those opposed to a Uniform Civil Code mean is that the State should not interfere with retrograde personal laws that discriminate on grounds of gender, laws which are not in tune with the social realities of the 21st century. The best example of such laws is the Muslim personal law that remains unaltered in sum and substance despite vacuous words of assurance by leading lights of the ulema.

The All-India Muslim Personal Law Board, which has vested itself with full and absolute powers, though it enjoys neither legal sanctity nor official approval, to implement personal law, had presented what was grandly described as a “model nikahnama”. That was supposed to be modernisation. More than 10 years later, nothing more is heard of that proposal.

While self-proclaimed progressives, who have never had to suffer the inequities of personal laws, were quick off the mark to hail this 14-page document as a big leap forward, Muslim women who have been agitating against the discrimination they face denounced it as nothing more than cosmetic tinkering. A decade on, the debate over the necessity for a Uniform Civil Code continues, like a stuck record.

Lost in the debate over iniquitous Muslim Personal Law and why a secular republic must repudiate such laws is the crucial fact that the All-India Muslim Personal Law Board is nothing more than the personal enterprise of ulema and alim, apart from maulanas who teach at seminaries. By its own admission, the All-India Muslim Personal Law Board was established in 1972-1973 “at a time when then Government of India was trying to subvert sharia’h law applicable to Indian Muslims through parallel legislation”.

The immediate backdrop was the introduction of the Adoption Bill in Parliament by HR Gokhale, then Union Law Minister. While introducing the Bill he had described it as “the first step towards Uniform Civil Code”.

This triggered an alert among the ulema, which immediately went on the offensive, decrying the Bill as an attempt to dilute, to quote the All-India Muslim Personal Law Board, the separate identity of Indian Muslims. The “risk of losing applicability of sharia’h laws was real and a concerted move by the community was needed to defeat the conspiracy”, the All-India Muslim Personal Law Board says of its history.

For the All-India Muslim Personal Law Board, “it was a historic moment. This was the first time in the history of India after Khilafat Movement that people and organisations of Indian Muslim community belonging to various schools of thought came together on a common platform to defend Muslim Personal Law.”

The first meeting to ‘save sharia’h’ was convened at Deoband at the initiative of Hazrat Maulana Syed Shah Minnatullah Rahmani, Ameer Shariat, Bihar and Orissa, and Hakeem-ul Islam Hazrat Maulana Qari Mohammad Taiyab, Muhtamim, Dar-ul Uloom, Deoband. At the meeting it was decided to hold a convention at Mumbai on December 27-28, 1972.

The official history of the All-India Muslim Personal Law Board records: “The convention was unprecedented. It showed unity, determination and resolve of the Indian Muslim community to protect the Muslim Personal Law. The Convention unanimously decided to form All-India Muslim Personal Law Board. As per the decision of the Mumbai Convention, the All-India Muslim Personal Law Board was formally established at a meeting held at Hyderabad on April 7, 1973.” The purpose: “To adopt suitable strategies for protection and continued applicability of Muslim Personal Law, i.e., Shariat Application Act, in India.”

Since then, the All-India Muslim Personal Law Board has consistently insisted that ‘sharia’h’ is beyond reach and scope of India’s courts of law. The Supreme Court’s judgement ordering maintenance for Shah Bano, an old, indigent woman thrown out of her home and hearth by her husband who had taken recourse to the expedient, sharia’h sanctioned means of pronouncing talaq thrice, led to nationwide violent protests engineered by the ulema and backed by the All-India Muslim Personal Law Board.

The Congress Government, headed by Rajiv Gandhi, instead of seizing upon the judgement to push ahead with a Uniform Civil Code, chose to pander to the ulema. The All-India Muslim Personal Law Board scored a huge victory when Rajiv Gandhi used his brute parliamentary majority to steamroll the Muslim Women’s Bill in 1986. This strengthened the case for sharia’h more than the 1937 Act.

Since then, although a debate has raged in the public space, little has changed on the ground. We remain as far away from a Uniform Civil Code as we were in 1950 when we declared India a Republic founded on the values of secularism.

The writer is a senior journalist based in the National Capital Region. His Twitter handle is @KanchanGupta